Google and the Global Takedown

by Lee Gesmer | Jul 21, 2017 | Internet Law

“One country shouldn’t be able to decide what information people in other countries can access online”    

 David Price, senior product counsel at Google

A risk long anticipated by Internet law observers is that the courts might become more aggressive in regulating online behavior, not just in their own nation, but worldwide. Google, more than any company, has had a target on its back for this kind of case.

The obvious example would be a court in one nation ordering Google to takedown (“de-index”) search results for users worldwide. This is exactly what happened in the Canadian Supreme Court’s decision in Google Inc. v. Equustek Solutions Inc. (June 28, 2017). This case represents the first time the highest court in a country has ordered a search engine to de-index worldwide in the context of a purely commercial two-party dispute. And, as we shall see below, this is a crucial issue for Google – one that it will not concede without a fight.

The facts of the Canadian case are straightforward. Equustek, a Canadian company, sued its former distributor, Datalink, on various grounds, including trade secret misappropriation. Datalink moved its offices and web host outside of Canada, but continued to sell its product online. A court order directed at Datalink was ineffective, so Equustek turned to Google, demanding that it remove links to Datalink from Google’s search engine. Google was prepared to comply in Canada, but Equuestek insisted that Google de-link Datalink worldwide.

After a series of lower-court decisions granted Equustek’s demand for worldwide de-indexing of Datalink sites Google appealed the case to the Supreme Court of Canada.

The Supreme Court upheld the lower Canadian court. It rejected Google’s argument that the Canadian courts did not have the legal authority to issue a worldwide takedown injunction. Noting that Datalink would not be commercially viable without Google’s search results, the court found that Google was “facilitating Datalink’s breach … by enabling it to continue carrying on business through the Internet.” Since the Internet has “no borders,” only a worldwide injunction would be effective to protect the Canadian company.

Google argued that a worldwide takedown order could run afoul of laws in other jurisdictions, but the court held that Google could seek modification of the order should that prove to be the case: “we are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google.”

While Google has no further appeals in Canada, it’s seeking a partial reprieve in the United States. On July 24, 2017, a month following the decision in Canada, Google filed suit against Equustek (the plaintiff in the Canadian case), asking a California federal district court to:

Declare that the Canadian Order is unenforceable in the United States as inconsistent with the First Amendment, the Communications Decency Act, and the public policy surrounding enforceability of foreign judgments pursuant to international comity.

Google opened its complaint as follows:

Google brings this action to prevent enforcement in the United States of a Canadian order that prohibits Google from publishing within the United States search result information about the contents of the internet. As part of a Canadian lawsuit brought by Canadian plaintiffs against Canadian defendants, a Canadian trial court enjoined Google (a non-party based in California) from including in its search results links to dozens of the Canadian defendants’ websites—not just on Google’s www.google.ca site for Canada, but worldwide, including within the United States. As a result, Google, alone among search engines and other providers of interactive computer services, is compelled to censor the information it provides to its users around the globe about the existence of the Canadian defendants’ websites.

How Google’s U.S. case will proceed raises some interesting and potentially important issues, including the following:

• Google’s complaint is based on three legal grounds: that the Canadian ruling violates the First Amendment, the Communications Decency Act* and U.S. public policy. Each of these contentions is likely to implicate complex legal arguments. The last issue raises difficult issues of international comity – in this case the willingness of a U.S. court to override a court decision from another jurisdiction affecting a U.S. corporation.
  

  *The Communications Decency Act states that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Likely, under this U.S. statute Google could not be forced to de-index search engine links to Datalink’s web pages.

• Even if the U.S. court does override the Canadian case in the U.S. and Google restores links to Datalink’s web pages in the U.S., Google would still be in violation of the injunction in Canada. Will Google petition the Canadian courts to modify the Canadian order to permit re-indexing in the U.S., and how would a Canadian court respond to such a petition?
• At a practical level, who will defend this suit, which could easily go to the Ninth Circuit, and perhaps the Supreme Court? Equustek, not the Canadian government, is the defendant, and it may not even have the financial resources to defend this case in the U.S. If it doesn’t, who will?
• Again, as a practical matter, what if Datalink (the original bad actor) goes out of business or removes the offending pages while the case is pending? Will the U.S. case be moot, leaving the Canadian decision standing as a potentially important precedent?

While the presence or absence of links to Datalink is of no financial significance to Google, Google v. Equustek represents an existential threat to the Internet that Google takes seriously – the Balkanization of the Internet. Countries with different views of permissible online speech could lead to an Internet where what you see in one country (such as the U.S.) may be different from what you see in another (such as Canada).

The risk that worldwide takedowns will be the future of the Internet is very real, and Google appears to be committed to preventing, or at the least minimizing, this outcome by challenging it, as it did in Canada. If it can’t achieve that, as it could not do in Canada, it will accept Balkanization as a second choice, as it is now seeking to do through its U.S. suit.

For readers who may be interested in the legal theories Google is advancing in the U.S. suit, I recommend the Electronic Frontier Foundation’s amicus brief in the Canadian case, which is available here.

Update 1: Google has filed a motion for a preliminary injunction prohibiting enforcement of the delisting order in the U.S. Link here

Update 2: on November 2, 2017, the federal district court for the district of Northern California enjoined enforcement of the Canadian order in the U.S. on the grounds that it was inconsistent with the Communications Decency Act.

The court’s opinion is available here. As I suggested might be the case, Equustek did not enter an appearance in the case to oppose the lawsuit.

Update 3: On December 14, 2017 the court entered a default judgment and permanent injunctive relief (here). 

California “Yelp” Bill, Guarantees Right to Post (Non-Defamatory) Reviews

by Lee Gesmer | Sep 19, 2014 | Internet Law

Imagine this.

You go to a new dentist and, before she will take you as a patient she requires you to sign an agreement that you won’t post negative reviews of her on the Internet. You go to book a wedding reception at a restaurant and before they will book your reception they ask you to sign a similar document. Even worse, you must agree that if you do post a negative review, you will owe the restaurant a $500 fine.

The Internet has been full of stories of this sort, but now one state — California — has put a stop to it. And, as is sometimes said when it comes to new laws, as California goes, so goes the country.

A bill signed into law in California on September 9, 2014, popularly referred to as the “Yelp” bill, prohibits the use of “non-disparagement” clauses in consumer contracts. The law takes effect on January 1, 2015. 

Under the new law a “contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.” It will also be “unlawful to threaten or to seek to enforce” such a provision, or to “otherwise penalize” a consumer for making any such statement. The law carries statutory penalties ranging from $2,500 for the first offense, up to $10,000 for “willful” violations.

The impact of this law will not be limited to California businesses: it will apply to anyone doing business with consumers in California.

One aspect of this law that is important to understand is that it does not give consumers free license to defame businesses, nor does it limit the right of businesses to sue consumers for defamatory statements. It is limited to using a contract or proposed contract (whether online or on paper) to preclude the publication of reviews — even defamatory reviews — in the first place. If  a review is defamatory, the business owner’s legal rights remain as they were before enactment of this law.

Practice tip: it is possible that the new law will  be viewed as an invitation to class action plaintiffs to seek aggregated statutory damages. Therefore, it is important that companies that do business with consumers in California (whether the business itself is in California or not), review their contracts and online terms and conditions to remove non-disparagement clauses that would violate this law.

The Yelp Bill – Civil Code Section 1670.8